Delhi District Court
Icici Bank Ltd. vs . Kalwa Chauhan on 31 March, 2022
ICICI Bank Ltd. Vs. Kalwa Chauhan
DLCT010100762021
IN THE COURT OF SH. PAWAN KUMAR JAIN
DISTRICT JUDGE (COMMERCIAL COURT)-03,
CENTRAL, TIS HAZARI COURTS, DELHI
CS (COMM) No. 2831/2021
ICICI Bank Ltd.
Having its Registered office at:
ICICI Bank Tower, Near Chakli Circle,
Old Padra Road, Vadodara390007
Gujarat, India.
Inter alia having its Branch Office at:
E1/3, Jhandewalan Extension,
District Centre, Jhandewalan,
New Delhi110055.
Through its Authorized Representative
Mr. Anuj Jain ....Plaintiff
Versus
Kalwa Chauhan
S/o Sh. Rajbir Singh
(Borrower)
R/o A456Q, ABlock,
Gali No.12, Mahavir Enclave2,
Uttam Nagar,
Delhi110059.
M.No. 8527332566 ....Defendant
CS (COMM) No.2831/2021 Page No. 1 of 11
ICICI Bank Ltd. Vs. Kalwa Chauhan
Date of Institution : 11.08.2021
Date on which Judgment reserved : 31.03.2022
Date on which judgment pronounced : 31.03.2022
SUIT FOR RECOVERY OF RS. 11,31,642.81
(RUPEES ELEVEN LACS THIRTY ONE THOUSAND
SIX HUNDRED FORTY TWO AND PAISA EIGHTY ONE
ONLY).
JUDGMENT
1. Plaintiff has filed a commercial suit for recovery of Rs.11,31,642.81 with pendente lite and future interest at the rate of 9.26% & 15.01% per annum at monthly rest from the date of filing of the suit till realization of the amount.
2. To seek the above relief, plaintiff inter-alia alleges:-
(i) That plaintiff is a bank incorporated under the provisions of Companies Act; whereas defendant is a borrower.
(ii) That in February 2018, defendant approached the plaintiff bank for grant of loan of Rs.8,71,000/- to buy the vehicle and submitted the Preliminary Credit Facility Application Form. On 08.02.2018, defendant also submitted Credit Facility Application Form (Ex.PW1/2) to avail the loan of Rs.8,83,200/-.CS (COMM) No.2831/2021 Page No. 2 of 11
ICICI Bank Ltd. Vs. Kalwa Chauhan
(iii) That at the request of the defendant, plaintiff bank sanctioned the loan to the sum of Rs.8,83,200/- and disbursed a sum of Rs.8,68,500/- to the dealer "Naksha Enterprises Pvt. Ltd.' on 15.02.2018 under loan account no.LADEL00037045754 after deducting the disbursement charges. In order to get the above credit facility, defendant had also executed the requisite documents i.e. Preliminary Credit Facility Application Form, Credit Facility Application Form (Ex.PW1/2), Deed of Hypothecation (Ex.PW1/3) and the Irrevocable Power of Attorney (Ex.PW1/4).
(iv) After availing the above credit facility, defendant had purchased the vehicle 'Honda WRV/VXMT' bearing Registration No.DL2CAY-3176.
(v) That as per the terms and conditions of the agreement, defendant agreed to repay the above credit limit in 84 monthly installments of Rs.14,327/- each. As per terms of the agreement, defendant further agreed to pay interest @ 9.26% per annum. The defendant had availed the Moratorium due to Covid-19 pandemic and the tenure of repayment has been increased to 89 months.
(vi) That in February 2019, defendant again approached the plaintiff bank for grant of Top Up loan of Rs.2,26,000/- against the security of above said vehicle bearing CS (COMM) No.2831/2021 Page No. 3 of 11 ICICI Bank Ltd. Vs. Kalwa Chauhan registration no. DL2CAY-3176 and submitted the Preliminary Credit Facility Application Form. On 06.02.2019, defendant also submitted Credit Facility Application Form (Ex.PW1/2A) to avail the personal loan of Rs.2,26,000/-.
(vii) That at the request of the defendant, plaintiff bank sanctioned the Top Up/Personal loan to the sum of Rs.2,26,000/- and disbursed a sum of Rs.2,23,286/- to the defendant on 07.02.2019 under loan account no.SPDEL00038544502 after deducting disbursement charges. In order to get the above credit facility, defendant had also executed the requisite documents i.e. Preliminary Credit Facility Application Form & Credit Facility Application Form (Ex.PW1/2A).
(viii) That as per the terms and conditions of the agreement, defendant agreed to repay the above personal loan in 48 monthly installments of Rs.6,286/- each. As per terms of the agreement, defendant further agreed to pay interest @ 15.01% per annum. The defendant had availed the Moratorium due to Covid-19 pandemic and the tenure of repayment has been increased to 56 months.
(ix) That as the defendant was not maintaining financial discipline in repayment of the loan amount, plaintiff bank recalled both the credit facilities by sending loan recall notice dated 18.02.2021. Same is Ex.PW1/5. As per CS (COMM) No.2831/2021 Page No. 4 of 11 ICICI Bank Ltd. Vs. Kalwa Chauhan notice dated 18.02.2021, as on 28.01.2021, an aggregate sum of Rs.10,77,173/- (i.e. Rs.8,40,301/- qua loan no.LADEL00037045754 & Rs.2,36,872/- qua loan no.SPDEL00038544502) was due and bank asked the defendant to clear the same within seven days.
(x) That since the defendant failed to clear the loan amount No.LADEL00037045754, plaintiff bank foreclosed the loan account by sending a notice dated 19.06.2021, which is part of Ex.PW1/6. As per the said notice, the defendant was liable to pay a sum of Rs.8,80,650.24 as on 19.06.2021.
(xi) That since the defendant failed to clear the personal loan amount No.SPDEL00038544502, plaintiff bank foreclosed the loan account by sending a notice dated 03.06.2021, which is part of Ex.PW1/6A. As per the said notice, the defendant was liable to pay a sum of Rs.2,50,992.57 as on 03.06.2021.
(xii) That plaintiff bank was maintaining both the loan accounts in ordinary course of its business and as per the statements of account Ex.PW1/6 (Colly) & Ex.PW1/6A (Colly), defendant was liable to pay a sum of Rs.11,31,642.81 (8,80,650.24+2,50,992.57).
CS (COMM) No.2831/2021 Page No. 5 of 11ICICI Bank Ltd. Vs. Kalwa Chauhan
3. Defendant has been served but since none appeared on his behalf, he was proceeded ex-parte on 26.11.2021.
4. In order to prove its case, plaintiff bank examined its Authorized Representative Mr. Anuj Jain as PW1.
5. Ld. Counsel appearing for the plaintiff raises following submissions:-
(i) That the credit facilities were sanctioned and disbursed on 15.02.2018 & 07.02.2019 respectively.
(ii) That defendant had executed all necessary documents to avail the above facilities and same are Ex.PW1/2, Ex.PW1/2A, Ex.PW1/3 & Ex.PW1/4.
(iii) That the credit facilities were recalled vide notice dated 18.02.2021 and the same is Ex.PW1/5.
(iv) That as per foreclosure notices and statements of account Ex.PW1/6 (Colly) & Ex.PW1/6A (Colly), defendant is liable to pay the suit amount.
(v) That during the pendency of the trial, defendant has settled the loan account No.LADEL00037045754 and made the entire payment in the said account as per settlement. Further, during the pendency of the trial, defendant had made the payment of Rs.47,140/-, thus CS (COMM) No.2831/2021 Page No. 6 of 11 ICICI Bank Ltd. Vs. Kalwa Chauhan defendant is liable to pay only a sum of Rs.2,03,852.57 i.e. (2,50,992.57 -47,140/-).
(vi) That since the plaintiff has filed the requisite certificates under Section 2A of Banker's Books Evidence Act (Ex.PW1/7) and under Section 65B of the Evidence Act (Ex.PW1/8), the computerized statements becomes admissible in evidence.
6. I have heard Ld. Counsel for the plaintiff bank, perused the record carefully and give my thoughtful consideration to his submissions.
7. From the testimony of PW1 and the documents relied upon by him, it is established that the defendant had approached the bank for a car loan of Rs.8,83,200/- and personal loan of Rs.2,26,000/- and submitted the Preliminary Credit Application Forms and also submitted Credit Facility Application Forms (Ex.PW1/2 & Ex.PW1/2A respectively). After analysing the request of the defendant, plaintiff bank sanctioned and disbursed the car loan of Rs.8,83,200/- on 15.02.2018 and personal loan of Rs.2,26,000/- on 07.02.2019.
7.1 From the testimony of PW1, it is also clear that the car loan no.LADEL00037045754 was repayable in 84 EMIs of Rs.14,327/- and personal loan no.SPDEL00038544502 was repayable in 48 EMIs of Rs.6,286/-. Since the defendant availed CS (COMM) No.2831/2021 Page No. 7 of 11 ICICI Bank Ltd. Vs. Kalwa Chauhan the moratorium facility announced by the Government due to Covid-19 pandemic, defendant was permitted to pay the amount in 89 & 56 installments respectively, but defendant stopped paying the installments after paying 22 installments in loan no.LADEL00037045754 & 11 installments in loan no.SPDEL00038544502. Accordingly, the bank recalled both the loan accounts by sending the notice dated 18.02.2021 and same is Ex.PW1/5. But despite that defendant failed to make payment, accordingly, the bank sent the foreclosure notices of both the loan accounts on 19.06.2021 & 03.06.2021 and same are part of Ex.PW1/6 (Colly) & Ex.PW1/6A (Colly).
7.2 As per the foreclosure notices, bank claimed the following amount:-
Car Loan No. Personal Loan No.
LADEL00037045754 SPDEL00038544502
Principal outstanding (Rs.) 7,17,119.10 1,96,891.00
Late payment penalty (Rs.) 37,346.00 10,503.00
Cheque bouncing charges and 7,080.00 6,490.00
other charges (Rs.)
Interest for the month (Rs.) 2,079.90 1,774.00
Prepayment charges @ 5.9% on 42,310.04 11,616.57
outstanding principal (Rs.)
Interest on pending installment 74,715.20 23,718.00
(Rs.)
Cashback Amount (Rs.) 0.00 0.00
Refunds (Rs.) 0.00 0.00
Total amount payable (Rs.) 8,80,650.24 2,50,992.57
CS (COMM) No.2831/2021 Page No. 8 of 11
ICICI Bank Ltd. Vs. Kalwa Chauhan
8. During arguments, Ld. Counsel appearing for the plaintiff bank fairly concedes that though the bank has charged a sum of Rs.53,926.61 (42,310.04+11,616.57) towards the prepayment charges @ 5.9% on outstanding principal qua both the loans, yet since the same was not part of the agreements, same is liable to be deducted from the suit amount. It is also pertinent to highlight that in the foreclosure notices, bank also advised the borrower to stop payment request for the next installment and in case next month's installment is debited from his account, the same shall be refunded subject to clearance. As the bank has foreclosed the accounts of its own, bank is not otherwise entitled for the prepayment charges of Rs.53,926.61. After deducting the said amount, defendant is liable to pay a sum of Rs.10,77,716.20 (8,80,650.24+2,50,992.52-53,921.61).
9. As the PW1 has filed the requisite certificates under section 2A of Bankers' Books Evidence Act & under Section 65B of the Evidence Act and the same are Ex.PW1/7 & Ex.PW1/8 respectively, the computerized statements of account Ex.PW1/6 & Ex.PW1/6A becomes admissible in evidence.
9.1 From the testimony of PW1, it is also established that during pendency, defendant has made the entire payment in CS (COMM) No.2831/2021 Page No. 9 of 11 ICICI Bank Ltd. Vs. Kalwa Chauhan loan No.LADEL00037045754 as per settlement, thus in the said account defendant is not liable to pay any amount. PW1 also testified that defendant has also made the payment of Rs.47,140/- in loan No.SPDEL00038544502. Since the defendant has made the payment of Rs.47,140/- in loan No.SPDEL00038544502 during pendency of trial, said amount is liable to be deducted from the amount of Rs.2,39,376/- (2,50,992.57-11616.57) payable towards loan No.SPDEL00038544502. After adjusting the said amount, defendant is liable to pay a sum of Rs.1,92,236/- only i.e. (2,39,376-47,140).
10. Since the testimony of PW1 and documents relied upon by the plaintiff remained unrebutted during trial, this court has no reason to disbelieve the same.
11. In view of the above, I am of the view that plaintiff is entitled for a money decree of Rs.1,92,236/-.
12. Though the plaintiff has claimed pendente lite and future interest @ 15.01% per annum at monthly rest in loan account no.SPDEL00038544502, yet it is admitted case of the plaintiff bank that the bank has foreclosed the loan account of its own and also terminated the agreement executed between the parties and defendant has already made the entire payment in the main loan account. Considering all these facts and the fact that CS (COMM) No.2831/2021 Page No. 10 of 11 ICICI Bank Ltd. Vs. Kalwa Chauhan rate of interest has been drastically reduced since 2019, I am of the view that ends of justice will be met if the pendente lite and future interest be awarded simple interest @ 9% per annum from the date of filing of the suit till its realization.
13. R E L I E F:-
In view of the above, I hereby pass :-
i) an ex-parte money decree in the sum of Rs.1,92,236/-
(Rupees One Lakh Ninety Two Thousand Two Hundred & Thirty Six only) in favour of the plaintiff and against the defendant with simple interest @ 9% per annum from the date of filing of the suit i.e. 11.08.2021 till the realization of the amount.
14. In view of the above, the suit is decreed with cost.
15. Decree sheet be prepared accordingly.
16. File be consigned to record room after due compliance.
Digitally
signed by
PAWAN PAWAN
KUMAR JAIN
KUMAR Date:
Announced in the open Court JAIN 2022.03.31
17:45:00
on this 31st day of March, 2022. +0530
(PAWAN KUMAR JAIN)
District Judge (Commercial Court)-03
Central, Tis Hazari Courts, Delhi.
CS (COMM) No.2831/2021 Page No. 11 of 11